Citation Nr: 9911874
Decision Date: 04/30/99 Archive Date: 05/06/99
DOCKET NO. 96-14 356 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia
THE ISSUE
Entitlement to an apportioned share of the veteran's
compensation benefits.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Sabrina M. Tilley, Counsel
INTRODUCTION
The veteran served on active duty from June 1969 to June
1973. This matter comes to the Board of Veterans' Appeals
(Board) on appeal from a May 1995 denial of the appellant's
application for a special apportionment for herself and the
veteran's two stepchildren.
FINDINGS OF FACT
1. The veteran is the recipient of VA disability
compensation at the combine rate of 40 percent, effective
from September 15, 1994.
2. The appellant and the veteran are married, but have been
living separately since June 1994.
3. The veteran has been receiving additional VA compensation
for his dependent spouse since 1993.
4. The veteran declared his two step children as dependents
in February 1994, and began receiving additional compensation
benefits for his two step children.
5. The appellant filed a claim for an apportioned share of
the veteran's compensation benefits on behalf of herself and
the veteran's step children in October 1994.
6. The appellant's monthly expenses exceed her net monthly.
7. The reported monthly expenses include $475 for rent, $250
for groceries, $35 for telephone, $40 to $50 for electricity,
$80 to $100 for gas, $60 for vehicle insurance and $60 for
transportation.
8. As the veteran did not provide reasonable financial
support for his step children and did not exercise parental
control over them, the two stepchildren were removed as
dependents, effective from March 1, 1995.
9. The veteran is reportedly unemployed since 1992, and has
not reported financial information concerning his income and
expenses.
CONCLUSIONS OF LAW
1. An apportionment of the veteran's compensation benefits
for the two stepchildren claimed by the appellant is not
warranted. 38 U.S.C.A. §§ 5107, 5307 (West 1991 & Supp.
1998); 38 C.F.R. §§ 3.450, 3.451 (1998).
2. An apportionment of the veteran's compensation benefits
in the amount of the additional benefits received for a
dependent spouse is warranted. 38 U.S.C.A. §§ 5107, 5307
(West 1991 & Supp. 1998); 38 C.F.R. §§ 3.450, 3.451 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I note that the appellant has presented a well-grounded
claim. That is she has presented a claim that is plausible.
I am also satisfied that all appropriate development has been
accomplished and that there is no further duty to assist in
developing facts pertinent to her claim. 38 U.S.C.A. § 5107.
A veteran's compensation benefits may be apportioned for his
spouse or children not residing with him if it is found that
he is not reasonably discharging his responsibility for their
support. 38 U.S.C.A. § 5307 (West l991); 38 C.F.R.
§ 3.450(a)(1)(ii). In addition, the regulations provide that
a "special" apportionment may be paid under the
circumstances set forth in 38 C.F.R. § 3.451. That
regulation provides that, without regard to any other
provision regarding apportionment, where hardship is shown to
exist, compensation may be apportioned between the veteran
and his dependents on the basis of the facts of the
individual case as long as it does not cause undue hardship
to the other persons in interest. In determining the basis
for special apportionment, consideration will be given such
factors as: amount of VA benefits payable; other resources
and income of the veteran and those dependents in whose
behalf apportionment is claimed; and special needs of the
veteran, his or her dependents, and the apportionment
claimants. The amount apportioned should generally be
consistent with the total number of dependents involved.
Ordinarily, apportionment of more than 50 percent of the
veteran's benefits would constitute undue hardship on him or
her while apportionment of less than 20 percent of his or her
benefits would not provide a reasonable amount for any
apportionee. Id.
In the instant case, the basic facts are not in dispute. A
rating decision in September 1993 increased the veteran's
combined disability evaluation from 10 percent to 30 percent,
effective from February 1, 1993. As a consequence, he became
eligible to receive additional compensation for his
dependents. In his September 1993 award letter, he was
advised to compete and return a declaration of status of
dependents. He did so in January 1994 and, as a consequence,
he began receiving additional compensation for his spouse
from the date of increase of his compensation in 1993. The
veteran declared the appellant and his two step children as
dependents in February 1994. As a consequence, he began
receiving additional compensation benefits for his two step
children, as reflected in a computer generated compensation
and pension award dated in March 1994.
The appellant filed a claim for an apportioned share of the
veteran's compensation benefits on behalf of herself and the
veteran's step children in October 1994. She reported that
she and the veteran had separated in June 1994. Special
apportionment was denied in a May 1995 decision on the basis
of failure on the part of the appellant to show special need.
The appellant submitted additional evidence with her notice
of disagreement in May 1995. She then reported a net monthly
income of approximately $994; deductions from gross income
included $250 described as "Court deduction (bankruptcy).
Her itemized monthly expenses exceeded $1000.00. Her
itemized list of monthly expenses includes $475 for rent,
$250 for groceries, $35 for telephone, $40 to $50 for
electricity, $80 to $100 for gas, $60 for vehicle insurance
and $60 for transportation. The appellant has adequately
demonstrated need, as her monthly income is exceeded by her
monthly expenses. I note in addition that the figures
reported by her have been consistent and are by no means
inflated or extraordinary.
The veteran has not provided information concerning his
income or expenses. His claims folder contains information
to the effect that he had not worked since 1992. By a rating
decision in May 1998, his combined disability evaluation was
increased from 30 percent to 40 percent, effective from
September 15, 1994.
In March 1996, the veteran was advised that, as he did not
provide reasonable financial support for his step children
and did not exercise parental control over them, he was no
longer entitled to continue to count them as dependents. The
veteran's step children were removed as dependents and his
receipt of additional benefits for them terminated effective
March 1, 1995 as indicated by a May 1996 letter. The Board
recognizes that there was a period following the appellant's
October 1994 claim for apportionment during which the veteran
continued to receive additional compensation for the two
stepchildren for whom that appellant has claimed an
apportionment of the veteran's compensation. Nonetheless, as
action was taken to remove these two children from the
veteran's compensation payment essentially contemporaneously
with the decision on the claim for apportionment, the Board
concludes that the record does not support an apportionment
of the veteran's compensation for the two stepchildren.
The Board notes, however, that the veteran continues to
receive additional compensation for the appellant, his
current spouse. For a combined disability evaluation of 40
percent, that amount ranged from $42 in 1994 and 1995 to $44
beginning December 1, 1996. The evidence shows that the
veteran is not reasonably contributing to the appellant's
support, and there is no evidence to demonstrate that
hardship would operate upon the veteran as a result of an
apportionment of the additional amount payable for such
dependent.
Under VA guidelines, if a veteran is receiving additional
benefits for dependents and the evidence shows he is not
reasonably contributing to their support, hardship on the
veteran would not result from apportionment of the additional
amounts payable for such dependents. VA Manual 21-1, Part
IV, paragraph 19.05. The Board has determined, therefore,
that the appellant is entitled to an apportionment of the
veteran's disability compensation in an amount equal to the
amount of the increase in his compensation for a dependent
spouse, which varies over the period in question.
ORDER
An apportionment of the veteran's compensation for the two
stepchildren claimed by the appellant is denied.
The apportionment to the appellant of the additional
compensation benefit received for a dependent spouse is
granted.
MARY GALLAGHER
Member, Board of Veterans' Appeals